E-tailer Fights Threat of ‘Drive-By’ ADA Lawsuit

OMAHA (CN) – Drive-by lawsuits using disabled “testers” are trolling online businesses by taking advantage of ADA regulations on accessibility to the internet, a Nebraska meat distributor claims in a lawsuit against advocates for the disabled.

Omaha Steaks sued Access Now on Feb. 27 in Federal Court, seeking declaratory judgment on whether Access Now’s threatened lawsuit under the Americans with Disabilities Act is ripe.

Omaha Steaks claims that Access Now files “troll-like lawsuits” and threats of suit, which include a “Confidential Settlement Agreement,” such as the one Access Now received from it in January.

Omaha Steaks, which sells meats online through omahasteaks.com, says the demand letter claimed that Access Now clients suffered “substantial access barriers” to “privacy-related information and legal terms and conditions” on omahasteaks.com.

Defendants include R. David New of Florida, an attorney and president of Access Now, and Erica Walz, a Missouri attorney.

Americans with Disabilities Act lawsuits filed under Title III have proliferated recently: a 37 percent increase nationally in the past year alone and a 143 percent increase since 2013, according to research from Seyfarth Shaw’s ADA Title III team, led by partner Minh Vu.

OmahaSteaks says the defendants’ attorneys’ demand letter included “a list of 18 lawsuits they previously filed in which they sought ‘permanent injunctive relief for pervasive accessibility and privacy failures … involving digital access.”

Only 4 percent of the recent ADA lawsuits involved accessibility to websites and mobile apps, but that number is growing rapidly as law firms and advocacy groups for the disabled catch on.

Vu said plaintiffs may be granted standing far more easily now, as people can reach a website from anywhere in the world.

“Website lawsuits are now the serial drive-by,” she said in a telephone interview.

For companies whose web presence is tied to physical store locations, Vu said, it’s fairly simple to establish standing to bring a claim.

Access Now’s Jan. 4 demand letter cites OmahaSteaks’ website Version 2.0 of the Web Content Accessibility Guidelines. The demand letter proposed that OmahaSteaks “work constructively” with Access Now and its law firm to resolve the issues and release the claims, in exchange for “payment of certain attorneys’ fees and expenses.”

Three paragraphs of the demand letter discussed website accessibility, but most of it focused on the proposed confidential settlement agreement, the complaint states. OmahaSteaks added that Access Now hired a “specialized company” to threaten it.

OmahaSteaks and its attorney declined comment, but say in the complaint that the company has been working with an outside group since June 2016 to ensure that its portals meet accessibility standards.

Omaha Steaks seeks a declaration that the lawsuit threatened by Access Now is moot, as the issue is not yet ripe, and that companies be allowed adequate time to comply with new regulations.

Title III of the Americans with Disabilities Act regulates public accommodations, commercial facilities and certain private entities that offer educational and occupational certification. According to the federal government’s ADA website, this covers more than 5 million private establishments, including restaurants, hotels, daycare centers and health spas. Most of the guidelines cover structural and architectural requirements.

A 2010 update to the regulations promised that the Department of Justice “intends to engage in additional rulemaking in the near future” to address websites as public accommodations.

These regulations were promised for 2018, but with the Trump administration’s executive order limiting the number of new regulations and requiring that two regulations come off the books for every new one implemented, and that the swap be revenue-neutral, it’s doubtful that the goal will be met.

What this means for now is that most web accessibility issues are still tied to businesses that have brick and mortar locations, and that websites can find a lifeline by offering the same services provided on the web over the telephone.

“Traditionally, you’d have to prove imminent harm,” Vu said. “If you encountered the barrier you’d be under threat of being harmed. When you’re just a click away, the issue becomes if you have a need to be on that website.”

Vu said only one judicial opinion has been handed down on the issue, a 2016 ruling in San Bernardino Superior Court, which found that an online retailer unfairly limited access for people with vision impairments. Vu said that most businesses will settle a case and try to make their website more accessible, so cases rarely make it to court.

In addition to saving money on attorneys’ fees, it almost always makes sense for a company to make its website more accessible, as nearly all companies want more customers.

But small companies may not have the resources to keep up with rapidly shifting trends and digital law. In theory, the undue burden exemption should protect small websites, but taking that defense to trial may not be realistic for small businesses and independent bloggers.

“I think it will have a chilling effect. Small business will be hit especially hard,” Vu said.

The University of California, Berkeley — hardly a small enterprise — announced this month that it was removing 20,000 online videos of classroom lectures and podcasts from free public access, because the videos lack captioning.

UC-Berkeley said it is reluctantly removing the videos in response to a demand from the Department of Justice that the videos be made accessible to the public, and due to concerns that intellectual property pirates are profiting off the videos without consent.

The obvious irony is that while the regulations seek more widespread access to the internet, they have forced UC-Berkeley to remove a massive cache of free educational material.

Omaha Steaks is represented by its general counsel Nora Kane, in Omaha.

%d bloggers like this: